MILITARY JUSTICE PERSONNEL: Court Members: Peremptory Challenges

2019 (October Term)

United States v. Bess, 80 M.J. 1 (under the Equal Protection Clause, peremptory strikes of an African-American from the jury venire may establish a prima facie case of purposeful discrimination, and once that prima facie case is established, the burden shifts to the government to provide a race-neutral explanation for the strike; just as the Equal Protection Clause forbids the States to exclude black persons from the venire on the assumption that blacks as a group are unqualified to serve as jurors, so it forbids the States to strike black veniremen on the assumption that they will be biased in a particular case simply because the defendant is black; the core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless were a court to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors’ race). 

(the Constitution prohibits all forms of purposeful racial discrimination in selection of jurors; a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial).


United States v. Hurn, 58 MJ 199 (Batson v. Kentucky, 476 U.S. 79 (1986), prohibits peremptory challenges based on race; this Court has adopted a per se application of Batson, placing the burden on the challenging party, upon timely objection, to provide a race-neutral explanation for the challenge; the proffered reason for the challenge may not be one that is unreasonable, implausible, or that otherwise makes no sense).

(a military judgeís determination that the trial counselís peremptory challenge was race-neutral is entitled to great deference and will not be overturned absent clear error).

(trial counsel's post-trial reason for a peremptory challenge was accepted as race-neutral after a military judge determined in a DuBay hearing that the only non-Caucasian officer on the panel was challenged to protect the quorum and that officer had informed trial counsel that he desired not to be a member because of his pressing workload).


United States v. Hurn, 55 MJ 446 (upon timely objection to a peremptory challenge, a prima facie case of discrimination is established, and the burden shifts to the challenging party to give a race-neutral explanation; that burden remains on the challenging party until a race-neutral reason is given).

(because of the differences between military and civilian tribunals and the holding in United States v. Moore, 28 MJ 366 (CMA 1989), a trial counsel may not exercise a peremptory challenge on the basis of a proffered reason that is unreasonable, implausible, or that otherwise makes no sense).

(reason proffered in this case, to protect the quorum, does not satisfy the purpose of Batson v. Kentucky, 476 U.S. 79 (1986), United States v. Moore, 28 MJ 366 (CMA 1989), and United States v. Tulloch, 47 MJ 283 (1997), which is to protect participants in judicial proceedings from racial discrimination).

(trial counselís asserted reason for a peremptory challenge, to protect the quorum, did not overcome the prima facie case of discrimination because he failed to explain why he challenged the only non-Caucasian officer instead of any of the Caucasian officers).

(Court of Appeals for the Armed forces declines to apply waiver to a defense challenge to a peremptory challenge where defense counsel made a timely objection, the military judge twice interrupted defense counsel, and military judge did not give defense counsel an opportunity to disagree with trial counselís asserted basis for the peremptory challenge).

(permitting trial counsel to offer a different reason for a peremptory challenge by means of an ex parte affidavit submitted more than two-and-a-half years after the fact would undermine the procedures adopted in courts-martial to test peremptory challenges; here, the explanation had not been tested in an adversarial setting, defense counsel had not had an opportunity to dispute the explanation, and there had been no factual determinations by a military judge).


United States v. Norfleet, 53 MJ 262 (the differences between civilian trials and courts-martial practice warrant a different standard for assessing the validity of reasons offered in support of a contested peremptory challenge:  military counsel must articulate a racially or gender neutral explanation that is not implausible, or that otherwise makes no sense).

(where counsel offers an explanation for a peremptory challenge that reveals patently impermissible discrimination, purposeful discrimination will not be sheltered under the umbrella of a separate proper basis for that peremptory challenge).

(trial counselís reference to a dispute between a court member and the legal office set forth a reasonable, gender-neutral basis for a peremptory challenge; this basis was upheld where second articulated basis was not inherently discriminatory and was not shown to be merely a pretext).

United States v. Chaney, 53 MJ 383 (neither the prosecution nor the defense may engage in purposeful discrimination on the basis of race or gender in the exercise of peremptory challenges).

(military justice has a procedure for examining allegations of purposeful discrimination in the exercise of peremptory challenges:  (1) if the party opposing the challenge believes that the other party has exercised a peremptory challenge against a member of a cognizable group, the opposing party must object and state the basis for the objection;  (2) the party making the challenge must offer a reason for the challenge that is neutral in terms of race or gender, as applicable; and (3) the military judge must review the record and weigh the credibility of the counsel making the peremptory challenge before the judge makes a factual determination regarding the presence or absence of purposeful discrimination in the panel memberís rejection).

(even in fields that are predominately associated with one gender, the occupation of a challenged member may provide an acceptable race or gender neutral reason for a peremptory challenge if the proffered reason is not used as a pretext for an improper race or gender based challenge).

(a military judge must determine whether counselís occupation-based rationale for a preemptory challenge is a pretext by considering whether the proffer is unreasonable, implausible, or makes no sense; in making this determination, the military judge should take into consideration the party making the challenge, the facts of the case, and the particular occupation of the challenged court member).

(military judge did not err by sustaining peremptory challenge of only female member of a court-martial panel where:  (1) trial counsel articulated that challenge was based on memberís occupation as a nurse; (2) military judge accepted this explanation as gender-neutral; (3) when defense counsel objected claiming the proffered reason was pretextual, the military judge noted that, in his experience, it was typical for trial counsel to exercise peremptory challenges against members of the medical group; (4) defense counsel did not object to military judgeís finding; and (5) the record made clear that the military judge granted the peremptory challenge based upon his general understanding that trial counsel commonly prefer not to have medical personnel serve as members, regardless of their gender).

(not all occupation-based peremptory challenges will pass judicial scrutiny without additional articulation to show that the proffered reason is not a pretext).

United States v. Armstrong, 54 MJ 51 (exercise of peremptory challenge against a member who was the subject of unsuccessful challenge for cause does not preclude appellate review of challenge for cause where RCM 912(f)(4) preserves that right and that right is not in conflict with any higher authority).


United States v. Gray, 51 MJ 1 (Congress and the President, the constitutionally authorized rulemakers for the military justice system, properly determined to provide the government, as a party, with a peremptory challenge).

(peremptory challenge against member who indicated he would have a very difficult time imposing the death penalty was not unconstitutional in that the memberís indecisiveness would prevent or substantially impair the performance of his duties as a member in accordance with his instructions and his oath).

(even though the military judge did not require trial counsel to articulate a race-neutral reason for a peremptory challenge at the time of the challenge and defense demand for explanation, an unsworn statement tendered the following day and included in the record provided a sufficient race-neutral explanation for the challenge).

(an unsworn statement, tendered the day after a Batson challenge to a peremptory challenge and included in the record, provided a sufficient race-neutral explanation for the challenge and complied with all three requirements established by Batson for evaluating peremptory challenges:  (1) trial counselís belated race-neutral explanation mooted any question of error in the judgeís apparent determination that the defense had not made a sufficient showing to require a government explanation; (2) the military judge did not preclude trial counsel from offering an explanation; and (3) the military judge made an implied ruling that the explanation was proper when he accepted a memorandum of the governmentís reason for exercising the peremptory challenge and asked if the defense had anything else on the matter).

Home Page |  Opinions & Digest  |  Daily Journal  |  Scheduled Hearings  |  Search Site